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THE
STADING COMMITTEE OF THE NATIONAL ASSEMBLY
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No.
04/2008/PL-UBTVQH12
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Hanoi,
April 02, 2008
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ORDINANCE
AMENDING AND SUPPLEMENTING A NUMBER OF ARTICLES OF THE
ORDINANCE ON HANDLING OF ADMINISTRATIVE VIOLATIONS
Pursuant to the 1992
Constitution of the Socialist Republic of Vietnam, which was amended and
supplemented under Resolution No. 51/2001/QH10;
Pursuant to Resolution No. 11/2007/QH10 of the National Assembly on the law-and
ordinance-making programs of its XIIth term (2007-2011) and 2008;
The Standing Committee of the National Assembly promulgates the Ordinance
Amending and Supplementing a Number of Articles of the Ordinance on Handling of
Administrative Violations.
Article 1. -
To amend and supplement a number of articles of the Ordinance on Handling of
Administrative Violations:
1. To
amend and supplement Article 12 into the following:
"Article 12. - Forms of
sanction for administrative violations and remedies
Forms of sanction for
administrative violations and remedies
1. For each act of
administrative violation, the violating individuals or organizations will be
subject to one of the following principal forms of sanction:
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b/ Fine.
2. Depending on the nature and
seriousness of their violations, individuals or organizations that commit
administrative violations may also be subject to one or more of the following
additional forms of sanction:
a/ Deprivation of the right to
use licenses or professional practice certificates;
b/ Confiscation of material
evidence and means used in administrative violations.
3. Apart from the forms of
sanction specified in Clause l and Clause 2 of this Article, the violating
individuals and organizations may also be subject to the application of one or
several of the following remedies:
a/ Forced restoration of the
initial state altered due to the administrative violation or forced
dismantlement of illegally constructed works;
b/ Forced application of
measures to overcome the environmental pollution or epidemic spread caused by
the administrative violation;
c/ Forced bringing out of the
Vietnamese territory or forced re-export of goods, articles and means;
d/ Forced destruction of
articles harmful to human health, domestic animals or cultivated plants, and of
harmful cultural products;
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4. Foreigners who commit
administrative violations may also be sanctioned by expulsion. Expulsion may be
applied as a principal or an additional form of sanction on a case-by-case
basis."
2. To
amend and supplement Article 14 into the following:
"Article 14.- Fines
Fines
1. Fine levels imposed for
administrative violations range from VND 10,000 VND to VND 500,000,000.
2. Depending on the nature and
seriousness of violations, the maximum fine levels applicable to state
management domains are prescribed as follows:
a/ A fine of up to VND 30,000,000
may be imposed for acts of administrative violation in the domains of security,
social order and safety; traffic works management and protection; irrigation
works exploitation and protection; labor; measurement and product and goods
quality; accounting; statistics; justice; social, insurance, and fire
prevention and fighting;
b/ A fine of up to VND
40,000,000 may be imposed for acts of administrative violation in the domains
of road traffic; inland waterway traffic; culture and information; tourism;
social evils prevention and combat; dikes and flood and storm prevention and
fighting; health; pricing; electricity; plant protection and quarantine;
aquatic resource protection; veterinary; plant varieties; livestock breeds;
defense; population and children; overseas guest workers; vocational training;
and national boundaries;
c/ A fine of up to VND
70,000,000 may be imposed for acts of administrative violation in the domains
of trade; charges and fees; customs; radiation safety and control; railway
traffic; post, telecommunications and radio frequencies; technology transfer;
insurance business; industrial explosive management; and physical training and
sports;
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c/ A fine of up to VND
500,000,000 may be imposed for acts of administrative violation in the domains
of environmental protection; securities; construction; land; banking;
intellectual property; forest management, forest protection and forest product
management; investigation, exploration and exploitation of marine resources,
oil and gas and other minerals.
3. For acts of administrative
violation in the state management domains not yet prescribed in Clause 2 this
Article, the Government shall stipulate fine levels which, however, must not
exceed VND 100,000,000.
When a law provides for a
maximum fine level different from those stipulated in this Article, the
provisions of such law prevail."
3. To add
the following Article 21a to Article 21:
"Article 21a. - Expenses
for taking remedies
Expenses for taking remedies
In case individuals or
organizations are unable to take remedies for consequences caused by their acts
of administrative violation specified in Articles 18, 19, 20 and 21 of this
Ordinance or they flee away but taking remedies is extremely urgent to protect
the environment or ensure
Uninterrupted traffic or social
order and safety, competent management agencies may use funds from their
allocated state budgets to take such remedies. Violating individuals and
organizations shall repay such funds to remedy-taking agencies."
4. To amend
and supplement Article 28 into the following:
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Competence of commune-level
People's Committee presidents to handle administrative violations
Commune-level People's Committee
presidents have the power to:
1. Impose caution;
2. Impose fines of up to VND
2,000,000;
3. Confiscate material evidence
and means used in administrative violations valued at up to VND 2,000,000;
4. Compel the restoration of the
initial state altered due to administrative violations;
5. Compel the taking of remedies
for environmental pollution or epidemic spread caused by administrative
violations;
6. Compel the destruction of
articles which are harmful to human health, domestic animals and cultivated
plants; and of harmful cultural products;
7. Decide on the application of
the measure of education at commune, ward or district township."
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"Article 29. -
Competence of district-level People's Committee presidents to handle
administrative violations
Competence of district-level
People's Committee presidents to handle administrative violations
District-level People's
Committee presidents have the power to:
1. Impose caution;
2. Impose fines of up to VND
30,000,000;
3. Deprive of the right to use
licenses or professional practice certificates falling under their competence;
4. Confiscate material evidence
and means used for administrative violations;
5. Take remedies specified at
Points a, b and d, Clause 3, Article 12 of this Ordinance;
6. Decide to apply the measure
of confinement to a reformatory;
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6. To amend
and supplement Article 31 into the following:
"Article 31. -
Competence of People's Police to handle administrative violations
Competence of People's Police to
handle administrative violations
1. People's police officers on
duty have the power to:
a/ Impose caution;
b/ Impose fines of up to VND
200,000.
2. Station heads and team heads
of persons defined in Clause l of this Article have the power to:
a/ Impose caution;
b/ Impose fines of up to VND
500,000.
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4. District-level police chiefs
have the power to:
a/ Impose caution;
b/ Impose fines of up to VND
10,000,000;
c/ Deprive of the right to use
licenses or professional practice certificates falling under their competence;
d/ Confiscate material evidence
and means used in administrative violations;
e/ Apply remedies specified at
Points a, b and d of Clause 3, Article 12 of this Ordinance.
5. Heads of Police Bureaus for
Administrative Management of Social Order, heads of Order Police Bureaus,
Police Bureaus for Investigation into Social Order-Related Crimes, Police
Bureaus for Investigation into Economic Management Order and Position-Related
Crimes, Police Bureaus for Investigation into Drug- Related Crimes, Road and
Railway Traffic Police Bureaus, Waterway Traffic Police Bureaus, Fire
Prevention and Fighting Police Bureaus, Judicial Protection and Assistance
Police Bureaus, Environmental Police Bureaus, Immigration Management Bureaus,
Mobile Police units of company or higher level; and police stations or posts at
border gates or export processing zones have the power to:
a/ Impose caution;
b/ Impose fines of up to VND
10,000,000;
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d/ Confiscate material evidence
and means used in administrative violations;
e/ Apply remedies specified at
Points a, b and d, Clause 3, Article 12 of this Ordinance.
6. Directors of provincial-level
Police Departments and Fire Prevention and Fighting Police Departments have the
power to:
a/ Impose caution;
b/ impose fines of up to VND
30,000,000
c/ Deprive of the right to use
licenses and professional practice certificates falling under their competence;
d/ Confiscate material evidence
and means used for administrative violations;
e/ Apply remedies specified at
Points a, b and d, Clause 3, Article 12 of this Ordinance.
f/ Directors of provincial level
Police Departments have the power to apply the sanction of expulsion as
decentralized by the Minister of Public Security.
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a/ Impose caution;
b/ Impose fines of up to maximum
levels applicable to domains under their respective management specified in
Clause 2 and Clause 3, Article 14 of this Ordinance;
c/ Deprive of the right to use
licenses and professional practice certificates falling under their competence;
d/ Confiscate material evidence
and means used in administrative violations;
e/ Apply remedies specified at
Points a, b and d, Clause Article 12 of this Ordinance.
8. The director of the
Immigration Management Department has the power to impose sanctions according
to Clause 7 of this Article and decide to apply the sanction of expulsion as
decentralized by the Minister of Public Security.
9. The Minister of Public
Security shall decide on the application of the sanction of expulsion."
7. To amend
and supplement Article 32 into the following:
"Article 32.- Competence
of the border guard to handle administrative violations
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1. Border guard soldiers on duty
have the power to:
a/ Impose caution;
b/ Impose fines of up to VND
200,000.
2. Team leaders of the persons
defined in Clause 1 of this Article, and chiefs of border-guard control
stations have the power to:
a/ Impose caution;
b/ Impose fines of up to VND
500,000.
3. Border guard post chiefs, border
guard flotilla commanders, sub-regional border guard commanders and port border
guard commanders have the power to:
a/ Impose caution;
b/ Impose fines of up to VND
10,000,000;
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d/ Apply remedies specified at
Points a, b and d, Clause 3, Article 12 of this Ordinance.
4. Provincial-level border guard
commanders and commanders of border guard fleets under the Border Guard Command
have the power to:
a/ Impose caution;
b/ Impose fines of up to maximum
levels applicable to the domains under their respective management specified at
Points a, b, c and d of Clause 2 and Clause 3, Article 14 of this Ordinance;
c/ Confiscate material evidence
and means used in administrative violations;
d/ Apply remedies specified at
Points a, b and d, Clause 3, Article 12 of this Ordinance."
8. To amend
and supplement Article 33 into the following.
" Article 33. -
Competence of the coast guard to handle administrative violations
- Competence of the coast guard
to handle administrative violations
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a/ Impose caution;
b/ Impose fines of up to VND
500,000.
2. Heads of coast guard
operation units have the power to:
a/ Impose caution;
b/ Impose fines of up to VND
1,000,000.
3. Heads of coast guard
operation teams have the power to:
a/ Impose caution;
b/ Impose fines of up to VND
5,000,000.
4. Coast guard flotilla captains
have the power to:
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b/ Impose fines of up to VND
10,000,000;
c/ Apply remedies specified at
Points a, b and d, Clause 3, Article 12 of this Ordinance.
5. Coast guard fleet commanders
have the power to:
a/ Impose caution;
b/ Impose fines of up to VND
20,000,000;
c/ Confiscate material evidence
and means used in administrative violations;
d/ Apply remedies specified at
Points a, b and d, Claude 3, Article 12 of this Ordinance.
6. Coast guard region commanders
have the power to:
a/ Impose caution;
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c/ Confiscate material evidence
and means used in administrative violations;
d/ Apply remedies specified at
Point a, b and d, Clause 3, Article 12 of this Ordinance.
7. The director of the Coast
Guard Department has the power to:
a/ Impose caution;
b/ Impose fines of up to maximum
levels applicable to the domains under his/her management specified at Clauses
2 and 3, Article 14 of this Ordinance;
c/ Deprive of the right to use
licenses and professional practice certificates falling under/his/her
competence;
d/ Confiscate material evidence
and means used in administrative violations;
e/ Apply remedies specified at
Points a, b and d, Clause 3, Article 12 of this Ordinance."
9. To amend
and supplement Article 34 into the following:
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- Competence of customs to
handle administrative violations
1. Customs officers on duty have
the power:
a/ Impose caution;
b/ Impose fines of up to VND
200,000.
2. Operation team leaders under
Customs Sub-Departments and Post-Clearance Examination Sup-Departments have the
power to:
a/ Impose caution;
b/ Impose fines of up to VND
5,000,000.
3. Heads of Customs
Sub-Departments and Post-Clearance Inspection Sub-Departments, heads of control
teams of provincial, inter-provincial, municipal Customs Departments (below
collectively referred to as Customs Departments), leaders of Anti-Smuggling
Control Teams and commanders of sea control flotillas under the Anti-Smuggle
Investigation Department of the General Department of Customs have the power
to:
a/ Impose caution;
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c/ Confiscate material evidence
and means used in administrative violations.
4. Directors of Anti-Smuggling
Investigation Departments, Post-Clearance Inspection Departments and Customs
Departments have the power to:
a/ Impose caution;
b/ Impose fines of up to maximum
levels applicable in the customs and taxation domains specified at Points c and
d, Clause 2, Article 14 of this Ordinance;
c/ Deprive of the right to use
licenses falling under their respective competence;
d/ Confiscate material evidence
and means used in administrative violations;
e/ Apply remedies specified at
Points c and d, Clause 3, Article 12 of this Ordinance.
10. To
amend and supplement Article 35 into the following:
"Article 35. -
Competence of the Ranger to handle administrative violations
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1. Ranger officers on duty have
the power to:
a/ Impose caution;
b/ Impose fines of up to VND
200,000.
2. Ranger station chiefs have
the power to:
a/ Impose caution;
b/ Impose fines of up to VND
5,000,0000;
c/ Confiscate material evidence
and means used in administrative violations valued at up to VND 20,000,000.
3. Heads of ranger units, heads
of Forest Products Re-Inspection Sub-Departments and heads of Mobile Ranger
teams have the power to:
a/ Impose caution;
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c/ Confiscate material evidence
and means used in administrative violations valued at up to VND 30,000,000;
d/ Compel the restoration of the
initial state altered due to administrative violations.
4. Directors of Ranger
Sub-Departments and heads of ranger task force teams have the power to:
a/ Impose caution;
b/ Impose fines of up to VND
20,000,000;
c/ Deprive of the right to use
licenses and professional practice certificates falling under their competence;
d/ Confiscate material evidence
and means used in administrative violations;
e/ Apply remedies specified at
Points a, b and d, Clause 3, Article 12 of this Ordinance.
5. The director of the Ranger
Department has the power to:
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b/ Impose fines of up to maximum
levels in the field of forest management, forest protection and forest product
management specified at Point e, Clause 2, Article 14 of this Ordinance;
c/ Deprive of the right to use
licenses and professional practice certificates falling under his/her
competence;
d/ Confiscate material evidence
and means used in administrative violations;
e/ apply remedies specified at
Points a, b and d, Clause 3, Article 12 of this Ordinance."
11. To
amend and supplement Article 36 into the following:
"Article 36. -
Competence of tax offices to handle administrative violations
Unless fine levels are otherwise
prescribed by law, the following persons have the power to:
1. Tax officers on duty:
a/ Impose caution;
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2. Tax station chiefs and tax
team leaders:
a/ Impose caution;
b/ Impose fines of up to VND
5,000,000.
3. District-level Tax Department
directors:
a/ Impose caution;
b/impose fines of up to VND
20,000,000;
c/ Confiscate material evidence
and means used in administrative violations.
4. Provincial-level Tax
Department directors:
a/ Impose caution;
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c/ Confiscate material evidence
and means used in administrative violations."
12. To
amend and supplement Article 38 into the following:
"Article 38.-
Competence of specialized inspectorates to handle administrative violations
Competence of specialized
inspectorates to handle administrative violations
1. Specialized inspectors
on duty have the power to:
a/ Impose caution;
b/ Impose fines of up to VND
500,000;
c/ Confiscate material evidence
and used in administrative violations valued at up VND 2,000,000;
d/ Apply remedies specified at
Points a, b and d, Clause 3, Article 12 of this Ordinance, except for forced
dismantlement of illegally constructed works.
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a/ Impose caution;
b/ Impose fines of up to VND
30,000,000
c/ Deprive of the right to use
licenses and professional practice certificates falling under their competence;
d/ Confiscate material evidence
and means used in administrative violations;
e/ Apply remedies specified at
Points a, b and d, Clause 3, Article 12 of this Ordinance.
3. Specialized chief inspectors
of ministries or ministerial-level agencies have the power to:
a/ Impose caution;
b/ Impose fines of up to maximum
levels applicable in the domains under their respective management specified at
Clause 2 and Clause 3, Article 14 of this Ordinance;
c/ Deprive of the right to use
licenses, and professional practice certificates falling under their respective
competence;
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e/ Apply remedies specified at
Points a, b and d, Clause 3, Article 12 of this Ordinance.
3. Specialized chief inspectors
of ministries or ministerial-level agencies have the power to:
a/ Impose caution:
b/ Impose fines of up to maximum
levels applicable in the domains under their respective management specified at
Clause 2 and Clause 3, Article 14 of this Ordinance;
c/ Deprive of the right to use
licenses and professional practice certificates falling under their respective
competence;
d/ Confiscate material evidence
and means used in administrative violations;
e/ Apply remedies specified at Points
a, b and d, Clause 3, Article 12 of this Ordinance."
13. To
amend and supplement article 39 into the following:
"Article 39. -
Competence of directors of seaport authorities, inland river port authorities
and airport authorities to handle administrative violations
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Directors of seaport
authorities, inland river port authorities and airport authorities have the
power to:
1. Impose caution;
2. Impose fines of up to VND
10,000,000;
3. Deprive of the right to use
licenses and professional practice certificates falling under their respective
competence;
4. Confiscate material evidence
and means use in administrative violations;
5. Apply remedies specified at
Points a, b and d, Clause Article 12 of this Ordinance."
14. To
amend and supplement Article 40 into the following Article 40 and Article 40a:
"Article 40. - Competence
of People's Courts to handle administrative violations
Competence of People's Courts to
handle administrative violations
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a/ Impose caution;
b/ Impose fines of up to VND
2,000,000;
c/ Confiscate material evidence
and means used in administrative violations.
2. Judges assigned to settle
bankruptcy cases have the power to:
a/ Impose caution;
b/ Impose fines of up to VND
10,000,000;
c/ Confiscate material evidence
and means used in administrative violations.
3. Presidents of district-level
People’s Courts, provincial-level People's Courts and regional Military Courts
have the power:
a/ Impose caution;
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c/ Confiscate material evidence
and means used in administrative violations.
4. Presidents of
provincial-level People's Courts and military zone- or equivalent level
military courts and the president of the Supreme People's Court have the power
to:
a/ Impose caution;
b/ Impose fines of up to VND
20,000,000;
c/ Confiscate material evidence
and means used in administrative violations.
Article 40a. - Competence
of civil judgment enforcement agencies to handle administrative violations
Competence of civil judgment
enforcement agencies to handle administrative violations
1. Civil judgment enforcers on
duty have the power to:
a/ Impose caution;
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2. Heads of district-level civil
judgment enforcement agencies have the power to:
a/ Impose caution;
b/ Impose fines of up to VND
500,000.
3. Heads of provincial-level
civil judgment enforcement agencies and military-zone judgment enforcement
agencies have the power to:
a/ Impose caution;
b/ Impose fines of up to VND
1,000,000.
4. Civil judgment enforcers who
are leaders of property liquidation and management groups in bankruptcy cases
have the power to:
a/ Impose caution;
b/ Impose fines of up to VND
5,000,000.
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"Article 40b. - Competence
of heads of overseas Vietnamese diplomatic missions, consulates and other
agencies authorized to perform consular functions, and the director of the
Overseas Labor Management Department to handle administrative violations
-Competence of heads of overseas
Vietnamese diplomatic missions, consulates and other agencies authorized to
perform consular functions, and the director of the Overseas Labor Management
Department to handle administrative violations
1. Heads of overseas Vietnamese
diplomatic missions, consulates and other agencies authorized to perform
consular functions have the power to:
a/ Impose caution;
b/ Impose fines of up to VND
10,000,000;
c/ Apply the measure of
compelling overseas guest workers to return home under Clause 6, Article 75 of
the Law on Vietnamese Guest Workers Working Under Contracts.
2. The director of the Overseas
Labor Management Department has the power to:
a/ Impose caution;
b/ Impose fines of up to VND
40,000,000;
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d/ Apply remedies specified in
Clause 4, Article 75 of the Law on Vietnamese Guest Workers Working Under
Contracts.
Article 40c. - Competence
of the Chairman of the Competition Council and the head of the Competition
Management Agency to handle administrative violations
Competence of the Chairman of
the Competition Council and the head of the Competition Management Agency to
handle administrative violations
Unless otherwise provided for by
law, the following persons have the power:
1. The director of the
Competition Management Department:
a/ Impose caution;
b/ Impose fines of up to VND
70,000,000;
c/ Confiscate material evidence
and means used in administrative violations;
d/ Deprive of the right to use
licenses and professional practice certificates falling under their respective
competence.
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a/ Impose caution;
b/ Impose fines of up to VND
70,000,000
c/ Confiscate material evidence
and means used in administrative violations;
d/ Apply remedies specified at
Points a, b and d, Clause 3, Article 12 of this Ordinance.
Article 40d. - Competence of
the State Securities Commission to handle administrative violations.
- Competence of the State
Securities Commission to handle administrative violations.
1. The chief securities
inspector has the power to:
a/ Impose caution;
b/ Impose fines of up to VND
70,000,000.
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a/ Impose caution;
b/ Impose fines of up to the
maximum level applicable in the securities domain specified at Point e, Clause
2, Article 14 of this Ordinance;
c/ Apply additional forms of
sanction and remedies specified in Clause 2 and Clause 2 and Clause 3, Article
119 of the Securities Law."
16. To
amend and supplement Article 41 into the following:
"Article 41. -
Authorization of the power to administrative violations Persons competent to
handle administrative violations defined in Articles 28, 29 and 30; Clauses 2,
3,4,5,6, 7 and 8 of Article 31; Clauses 2, 3 and 4 of Article 32; Clause 3, 4,
5, 6 and 7 of Article 33; Clauses 2, 3 and 4 of Article 34; Clauses 2, 3, 4 and
5 of Article 35; Clauses 2, 3 and 4 of Article 36; Clause 2, 3 and 4 of Article
37; Clauses 2 and 3 of Article 38; Article 39; Clauses 3 and 4 of Article 40;
Clauses 2 and 3 of Article 40a, Article 40b, Article 40c and Article 40d of
this Ordinance may authorize their deputies to exercise the power to handle
administrative violations. Authorized deputies shall take responsibility to
their heads and law for their decisions to handle administrative
violations."
Authorization of the power to
administrative violations Persons competent to handle administrative violations
defined in Articles 28, 29 and 30; Clauses 2, 3,4,5,6, 7 and 8 of Article 31;
Clauses 2, 3 and 4 of Article 32; Clause 3, 4, 5, 6 and 7 of Article 33;
Clauses 2, 3 and 4 of Article 34; Clauses 2, 3, 4 and 5 of Article 35; Clauses
2, 3 and 4 of Article 36; Clause 2, 3 and 4 of Article 37; Clauses 2 and 3 of
Article 38; Article 39; Clauses 3 and 4 of Article 40; Clauses 2 and 3 of
Article 40a, Article 40b, Article 40c and Article 40d of this Ordinance may
authorize their deputies to exercise the power to handle administrative
violations. Authorized deputies shall take responsibility to their heads and
law for their decisions to handle administrative violations."
17. To
amend and supplement Article 42 into the following:
"Article 42. -
Principles for determining the competence to handle administrative violations.
Principles for determining the
competence to handle administrative violations.
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Persons competent to sanction
administrative violations defined in Articles 31 thru 40d of this Ordinance are
competent to sanction administrative violations in the domains and branches
falling under their respective management.
Where an administrative violation
falls under the sanctioning competence of more than one person, sanctioning
shall be effected by the person who fist receives and processes the case.
2. The sanctioning competence of
the persons defined in Articles 28 thru 40d of this Ordinance is applicable to
a single act of administrative violation. In case of fine, the sanctioning
competence shall be determined on the basis of the maximum level of the fine
table prescribed for each specific act of violation.
3. In case a person is
sanctioned for more than one act of administrative violation, the sanctioning
competence shall be determined on the following principles:
a/ If the sanctioning form and
level prescribed for each act fall under the competence of the sanctioning
person, the sanctioning competence also rests with such person;
b/ If the sanctioning form and
level prescribed for one of the acts fall beyond the competence of the
sanctioning person, he/she shall transfer the case of violation to an authority
with sanctioning competence;
c/ If acts fall within the
sanctioning competence of more than one person in different branches, the
sanctioning competence will belong to the People's Committee president' with
sanctioning competence in the locality where the violation is committed."
18. To amend
and supplement Article 45 into the following:
"Article 45. -
Competence to keep persons in custody according to administrative procedures
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1. The following persons may
decide to keep persons in custody according to administrative procedures:
a/ Commune/ward/township
People's Committee presidents and ward police chiefs;
b/ District police chiefs;
c/ Heads of Police Bureaus for
Administrative Management of Social Order, Order Police Bureaus, Road and
Railway Traffic Police Bureaus, Waterway Traffic Police Bureaus, Police Bureaus
for Investigation into Economic Management Order and Position-Related Crimes,
Police Bureaus for Investigation into Social Order-Related Crimes, Police Bureaus
for Investigation into Drug-Related Crimes and Immigration Management Bureaus
of provincial-level police;
d/ Heads of mobile police units
of company or higher levels and heads of border-gate police stations;
e/ Heads of ranger units and
leaders of mobile ranger teams;
f/ Heads of Customs
Sub-Departments, leaders of Control Teams of Customs Departments, leaders of
Anti-Smuggling Control Teams and leaders of sea control flotillas under the
Anti Smuggling Investigation Department of the General Department of Customs;
g/ Leaders of market management
teams;
h/ Commanders of border guard
sub-regions, commanders of border guard fleets, commanders of border guard
flotillas, heads of border guard posts and commanders of border guard units
stationed in border regions and islands;
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j/ Airplane or ship captains
when airplanes or ships have left airports or seaports.
2. Persons defined in Clause 1
of this Article may authorize their deputies to exercise the power to keep
persons in custody according to administrative procedures and authorize the
taking of measures to stop administrative violations and ensure the handling of
other administrative
violations. Authorization must
be effected in writing. Authorized deputies shall take responsibility to their
heads and law for custody decisions.
19. To
amend and supplement Article 46 into the following:
"Article 46. - Seizure
of material evidence and means of administrative violations
-Seizure of material evidence
and means of administrative violations
1. Seizure of material evidence
and means of administrative violations may apply only to cases in which it is
necessary to verify circumstances used as a basis for deciding to handle or
immediately stop administrative violations.
Persons defined in Article 45 of
this Ordinance, chief specialized inspectors of provincial-level Services and
chief specialized inspectors of ministries and ministerial-level agencies,
directors of seaport authorities, directors of inland river port authorities
and directors of airport authorities may decide to seize material evidence and
means used in administrative violations.
2. In case there are grounds to
believe that the material evidence and means of administrative violations can
be dispersed or destroyed if they are not seized immediately, immediate
superiors of people's police officers, border guards, ranger officers, customs
officers, market controllers or specialized inspectors may decide to seize such
material evidence and means. Within 24 hours after the decisions are issued,
the decision issuers shall report to their superiors who are competent to seize
material evidence and means of administrative violations defined in Clause 1 of
this Article and get their written consent; in case of failure to get written
consent of such persons, the decision issuers shall immediately cancel their
seizure decisions and return the seized articles, money, goods and means.
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In case the material evidence and
means need to be sealed, the sealing must be conducted in front of the
violators; if the violators are absent, the sealing must be conducted in front
of their families’ representatives, organizations' representatives, local
administration's representatives and
witnesses.
4. For Vietnamese currency,
foreign currencies, gold, silver, precious stones, precious metals, narcotics
and other objects subject to special management, they shall be preserved in
accordance with law.
For material evidence being
commodities and articles which are easy to decay, the persons issuing decisions
on their seizure shall handle them under Clause 3, Article 61 of this
Ordinance.
5. Within ten days from the date
of seizure, the persons who have issued the seizure decisions shall handle the
seized material evidence and means with measures indicated in the handling
decisions or return them to the concerned individuals or organizations if the
sanctioning form of confiscation is not applied. This seizure duration may be
prolonged in complicated cases requiring verification but must not exceed sixty
days counting from the date of seizure. Prolongation of the duration of seizure
of material evidence and means shall be decided by persons defined in Clause 1
of this Article.
6. Seizure of material evidence
and means of administrative violations must be effected under written decisions
enclosed with seizure records to be handed over to the violators or
representatives of the violating organizations, one copy each."
20. To
amend and supplement Article 49 into the following:
"Article 49. - Search
of places where material evidence and means of administrative violations are
hidden
-Search of places where material
evidence and means of administrative violations are hidden
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2. Persons defined in Article 45
of this Ordinance may decide to search places where material evidence and means
of administrative violations are hidden; if such place is a residence, the
search decision must be consented in writing by the district-level People’s
Committee president before the search is conducted.
3. Search of places where
material evidence and means of administrative violations are hidden must be
conducted in the presence of the owners of such places or members of their
families and witnesses. In case the place owners or members of their families
are absent while the search cannot be postponed, the presence of a
representative of the local administration and two witnesses is required.
4. Search of places where
material evidence and means of administrative violations are hidden must not be
conducted at night, except in emergency cases or when the search cannot be
finished before night, but the reason therefore must be clearly indicated in
the search records.
5. All searches of places where
material evidence and means of administrative violations are hidden must be
effected under written decisions and recorded in writing. Such decisions and
records must be handed to the place owners, one copy each."
21. To
amend and supplement Article 54 into the following:
"Article 54. - Simple
procedures
Simple procedures
For caution or fine of between
VND 10,000 and 200,000 persons with sanctioning competence may issue decisions
to sanction on the spot. For on-the-spot sanctions, it is not required to make
a written record, except for administrative violations detected with the aid of
professional technical devices.
A sanctioning decision must
clearly state the date of issuance; the full name and address of the violator
or violating organization; act of violation; place where the violation is committed;
full name and position of the decision issuer; and applicable legal provisions.
Such decision must be handed to the sanctioned individual or organization, one
copy each. When a caution is imposed on a minor, the caution decision must be
sent to his/her parent or guardian or the school where he/she is studying.
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22. To
amend and supplement Article 55 into the following:
"Article 55. - Making
records of administrative violations
. - Making records of
administrative violations
1. Upon detecting administrative
violations in their respective management domains, persons with sanctioning
competence on duty shall promptly make records thereof, except for cases of
sanctioning according to simple procedures. When the administrative violation
does not fall under the sanctioning competence of the record maker, the record
shall be promptly sent to a person with sanctioning competence for sanctioning.
For administrative violations
detected by professional technical devices, a record shall be made immediately
after violators are identified.
For administrative violations
committed on aircraft or ships, the aircraft or ship captains must make records
the records thereof and send them to persons with sanctioning competence when
the aircraft or ships return to the airports or seaports.
2. An administrative violation
record must clearly indicate the date and place of making the record; full name
and position of the maker, full name, address and occupation of the violator or
name and address of the violating organization; time, date and location when and
where the administrative violations occur; act of violation; measures taken to
prevent the administrative violation and ensure sanctioning (if any);
conditions of the seized material evidence and means (if any); statements of
the violator or representative of the violating organization. If there are
witnesses, victim or representative of the victim organization, their full
names, addresses and statements must be indicated in the record.
If the administrative violator
deliberately escapes or is absent from the place where the violation occurred
for objective reason, the record must be signed by a representative of the
administration of the place where the violation occurred or by two witnesses.
3. A record must be made in at
least two copies; signed by the record maker and the violator or the
representative of the violating organization. If there are witnesses, victims
or representatives of the victim organizations, they must also sign the record.
If the record consists of many pages, the persons mentioned in this Clause
shall sign on each page. If the violator, the representative of the violating
organization, witnesses, victims or representatives of the victim organizations
refuse to sign, the record maker shall write the reasons there in the record.
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23. To add
the following Article 55a to Article 55:
"Article 55a. - Use
of professional technical devices ensuring traffic order and safety to detect
and track down administrative violators
Use of professional technical
devices ensuring traffic order and safety to detect and track down
administrative violators
1. Cameras, visual speedometers
or other professional technical devices may be used in ensuring traffic order
and safety inroads, railways, inland waterways, maritime navigation and civil aviation
to detect and track down administrative violators.
2. Evidence collected through
professional technical devices must be indicated in records of administrative
violations.
3. The Prime Minister shall
issue regulations on management and use and a list of professional technical
devices used to collect evidence of administrative violations."
24. To
amend and supplement Article 57 into the following:
Article 57. - Fining
procedures
Fining procedures
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2. When fining, the specific
fine level for an act of administrative violation is the average of the fine
bracket prescribed for such act; if extenuating circumstances are involved, the
fine level can be reduced but not to below the minimum level of the fine
bracket; if aggravating circumstances are involved, the fine level may be
increased but not beyond the maximum level of the fine bracket.
3. Where only a fine is imposed
on the violating individual or organization, the person with sanctioning
competence may temporarily seize the permit for circulation of the vehicle or
driving license or other necessary relevant paper until such individual or
organization completely abides by the sanctioning decision. If the violating
individual or organization does not have any of these papers, the person with
sanctioning competence may temporarily seize the material evidence or means in
violation.
4. Fined individuals and
organizations shall pay fines and get fine receipts.
5. Collected fines must be
remitted into the state budget via accounts opened at state treasuries.
Fines may be paid in
installments or lump sum within the time limit decided by persons with
sanctioning competence.
6. The Government shall
stipulate the payment of fines in installments and the management of fine
receipts and fine money."
25. To
amend and supplement Article 61 into the following:
"Article 61. - Handing
of material evidence and means used in administrative violations
Handing of material evidence and
means used in administrative violations
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If the material evidence and
means used in administrative violations are confiscated under decisions issued
by competent persons of central agencies, they shall be delivered to the
provincial-level auction service center of the place where administrative violations
occur for auction.
If the material evidence and
means used in administrative violations are confiscated under decisions issued
by competent persons of provincial-level agencies, they shall be delivered to
the provincial-level auction service center of the place where the agency of
the competent person who has issued the confiscation decision is headquartered
for auction.
If the material evidence and
means used in administrative violations are confiscated under decisions issued
by competent persons of district-or lower level agencies, a district-level
auction board will be set up to auction such material evidence and means.
Auction of material evidence and
means used in administrative violations must be carried out according to the
law on auction.
When confiscated material
evidence and means cannot be sold, the agency of the competent person that has
issued the confiscation decision shall set up a board to liquidate the property
in accordance with law.
Proceeds from the auction or
material evidences and means used in administrative violations, after
subtracting expenses according to law, must be remitted into the state budget
via accounts opened at state treasuries.
2. For material evidence and
means used in administrative violations which are harmful cultural products,
fake goods of no use value, articles harmful to human health, domestic animals
or plants and must be destroyed or confiscated material evidence and means are
of no use value, competent persons shall set up a handling board to destroy
them. Depending on the nature of the material evidence and means, the handling
board may be composed of representatives of concerned state bodies. The
destruction of material evidence and means used for administrative violations
must be recorded in a minute signed by members of the handling board.
For goods, articles and means
forced to be brought out of the Vietnamese territory or forced to be
re-exported, the violating individuals or organizations shall take them out of
Vietnamese territory within the time limit prescribed in the sanctioning
decisions.
3. For material evidence used in
administrative violations being goods and articles which are easy to decay, the
persons competent to confiscate them shall make records thereof and immediately
organize their sale. The proceeds from the sale must be deposited into
temporary custody accounts opened at state treasuries. If later, by decisions
of competent persons, such material evidence is confiscated, the proceeds shall
be remitted into the state budget. In case such material evidence is not
confiscated, the proceeds shall be returned to the lawful owners, managers or
users.
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5. For material evidence and
means illegally appropriated and used in administrative violations, they must
be returned to their lawful owners, managers or users.
6. Expenses for warehousing,
yard storage and preservation of material evidence and means used in
administrative violations and other expenses compliant with legal provisions
may be subtracted from the proceeds from the sale of material evidence and
means used in administrative violations.
Charges for warehousing, yard
storage and preservation of material evidence and means shall not be collected
if the owners of such material evidence and means are not at fault in the
administrative violations or the measure of confiscation is not applied to
their material evidence and means.
7. Persons with material
evidence and means used in administrative violations which are seized shall pay
charges for their warehousing, yard
storage and preservation and
other expenses as prescribed by law according to the duration of seizure within
the time limit specified in Clause 5,Article 46 of this Ordinance.
If the person with material
evidence and means used in administrative violations who has been notified to
receive the material evidence and means fails to come to receive them on time
as notified, he/she shall pay charges for the warehousing, yard storage and
preservation of the material evidence and means and other expenses for the time
beyond the notified deadline, unless he/she has a plausible reason. Past 30
days after
the notified deadline, if the
person with the material evidence and means fails to come to receive them, the
material evidence and means will be handled according to Clause 4 of this
Article."
26. To
amend and supplement Article 64 into the following:
"Article 64.- Compliance
with decisions to sanction administrative violations
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1. Individuals and organizations
sanctioned for administrative violations shall comply with the sanctioning
decisions within ten days from the date they are given the sanctioning
decisions, unless otherwise provided for by law.
2. Past the time limit
prescribed in Clause 1 of this Article, if the individuals or organizations
sanctioned for administrative violations still fail to voluntarily comply with
the sanctioning decisions, they shall be forced to do so.
27. To add
the following Article 66a to Article 66:
"Article 66a.- Responsibilities
of credit institutions in implementing decisions to enforce compliance with
decisions on sanctioning administrative violations
.-Responsibilities of credit
institutions in implementing decisions to enforce compliance with decisions on
sanctioning administrative violations
1. Upon receiving a
decision to enforce compliance with the decision on sanctioning an
administrative violation, the credit institution at which the individual or
organization against whom compliance is enforced shah retain in the account of
that individual or organization a sum of money equivalent to the sum of money
that individual or organization is ordered to pay by the competent agency or
person that has issued the enforcement decision, if, at that time, the deposit
account has a balance equal to or higher than the sum of money payable by that
individual or organization; at the same time, within ten days from the date of
receipt of the enforcement decision, shall deduct and transfer the sum of money
payable by that individual or organization from this deposit account into the
state budget via a state treasury account; if the balance of the deposit
account is smaller than the sum of money payable by that individual or
organization, the credit institution shall still retain, deduct and transfer
the balance. Five working days before deducting and transferring money, the
credit institution shall notify that individual or organization of the
deduction and transfer but such deduction and transfer does not require
approval of that individual or organization.
2. A Credit institution that
fails to retain in the account of the individual or organization against whom
compliance is enforced the sum of money as prescribed in Clause 1 of this
Article shall pay that sum of money by itself. The individual or organization
against whom compliance is enforced shall refund the sum of money which the
credit institution has paid to the State. If the balance of the deposit account
is less than the sum of money to be deducted and transferred, the individual or
organization against whom compliance is enforced shall, apart from paying the
sum of money already paid by the credit institution, pay to the State the
deficit of the payable sum.
3. If failing to deduct to
deduct and transfer money, the credit institution shall be imposed a fine equal
to the sum of money which it fails to deduct and transfer into the state budget
via a state treasury account but not exceeding VND 500,000,000."
28. To
amend and supplement Article 67 into the following:
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. - Competence to issue
enforcement decisions
The following persons are
competent to issue enforcement decisions and tasked to organize enforcement of
compliance with sanctioning decisions of their own and their subordinates:
1. Presidents of commune-level,
or provincial-level People’s Committees;
2. Chiefs of police stations,
chiefs of district-level police, directors of provincial-level fire prevention
and fighting police departments, directors of provincial-level police, the
director of the Police Department for Administrative Management of Social
Order, the director of the Police Department for Investigation into Social
Order-related Crimes, the director of the Police Department for Investigation
into Economic Management Order- and Position-Related Crimes, the director of
the Police Department for Investigation into Drug-Related Crimes, the director
of the Land and Railway Traffic Police Department, the director of the Waterway
Traffic Police Department, the director of the Fire Prevention and Fighting
Police Department, the director of the Immigration Management Department, the
director of the Judicial Protection and Assistance Department and the director
of the Environmental Police Department;
3. Heads of border guard posts,
commanders of port border-gate border guard stations, commanders of
provincial-level border guards; commanders of border guar guard fleets under
the Border Guard Command; and the director of the Coast Guard Department;
4. Directors of Customs
Departments, the director of the Post-Clearance Inspection Department, and the
director of the Anti-Smuggling Investigation Department under the General
Department of Customs;
5. Heads of Ranger
Sub-Departments and the director of the Ranger Department;
6. Directors of provincial Tax
Departments;
7. Heads of Market Management Sub-Departments
and the director of the Market Management Department;
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9. The director of the
Competition Management Department:
10. The Chairman of the State
Securities Commission;
11. Specialized chief inspectors
of provincial-level services, specialized chief inspectors of ministries or
ministerial-level agencies;
12. Directors of seaport
authorities, directors of inland river port authorities and directors of
airport authorities.
13. Presidents of district-level
People’s Courts, presidents of provincial-level People's Courts, presidents of
regional military courts, presidents of military zone- and equivalent level
military courts, the president of the Supreme People's Court, heads of
provincial-level civil judgment enforcement agencies."
29. To
amend and supplement Article 113 into the following:
"Article 113. - Handling
of cases where a person is subject to both confinement to an educational
establishment and confinement to a medical treatment establishment or both
confinement to a reformatory and confinement to a medical treatment
establishment
- Handling of cases where a
person is subject to both confinement to an educational establishment and
confinement to a medical treatment establishment or both confinement to a
reformatory and confinement to a medical treatment establishment
1. In case a person has
committed an act in violation of law subject to both confinement to an
educational establishment and confinement to a medical treatment establishment
or both confinement to a reformatory and confinement to a medical treatment
establishment, the measure of confinement to a medical treatment establishment
will be applied.
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3. In the period of
detoxification and rehabilitation, lf persons who are staying in a medical
treatment establishment commit acts in violation of Point c, Clause 2, Article
24 and Clause 2, Article 25 of this Ordinance, they shall be confined to an
educational establishment or a reformatory.
Directors of medical treatment
establishments shall compile dossiers of proposal to confine to an educational
establishment or a reformatory persons who commit acts specified in Clause 3 of
this Article on the basis of their existing dossiers and records of new acts of
violations and send them to presidents of district- or provincial-level
People's Committees that have issued decisions for consideration and
application of the measure specified in Clause 1, Article 24 or Clause
1, Article 25 of this Ordinance.
Procedures for considering
confinement of the above persons to an educational establishment or a
reformatory shall be carried out under the provisions of this Ordinance.
Article 2.
1. This
Ordinance takes effect on August 1, 2008.
2. All previous regulations on
handling of administrative violations which are contrary to this Ordinance are
annulled. In case it is otherwise provided for by a law, the provisions of the
law apply.
ON
BEHALF OF THE STANDING COMMITTEE OF THE NATIONAL ASSEMBLY
CHAIRMAN
Nguyen Phu Trong